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1 KIMBLE V. DOUGLAS COUNTY SCH. DIST. RE-1 (D. COLO. 2013) By Elena M. Gallegos B.K. qualified and had been receiving special education services under the IDEA. According to the court, she had been served under a number of IEPs. At her annual IEP meeting prior to entering middle school, the district proposed an IEP that was different from prior IEPs, and not one that the parent liked. Instead of challenging the IEP, the parent revoked consent for IDEA services. Copyright 2015: Walsh, Anderson, Gallegos, Green and Treviño, P.C. 1

2 The Special Education Director wrote a letter stating that due to the IDEA revocation of consent, B.K. had become a general education student who may receive those accommodations available to non-disabled children, and that a Section 504 plan is a plan for a student with a disability; here, [B.K.]'s Section 504 plan would be her IEP. [Plaintiffs'] revocation of consent, therefore, also revokes consent for those services that would be offered under Section 504. On July 13, 2010, the parents responded by , requesting a meeting at the middle school pursuant to Section 504 to develop a 504 plan, which may designate assistive technologies and additional curriculum augmentations. On August 4, 2010, the district convened a Section 504 meeting. First, they discussed eligibility, and agreed that B.K. qualified as a student with a disability under Section 504. Then they discussed services under Section 504. Copyright 2015: Walsh, Anderson, Gallegos, Green and Treviño, P.C. 2

3 The Section 504 plan the district offered was to implement the services as identified in the May 19, 2010 IEP. The parents did not accept the Section 504 plan because it contained the same special education and related services that they had rejected as part of the IEP under the IDEA. During the school year, the Principal and Assistant Principal sent numerous s, all indicating that B.K. could not receive disability-based accommodations in her mainstream classes due to their revocation of consent for services under the IDEA. The s stated: Because Plaintiffs had revoked consent for implementation of IDEA services and... [were] not in agreement with the Section 504 team's recommendation that those services be reinstated, B.K. is a general education student. Copyright 2015: Walsh, Anderson, Gallegos, Green and Treviño, P.C. 3

4 The s further stated: An IEP was written that would allow access to assistive technology and accommodations to support her learning, but the parents had revoked [B.K.'s] right to receive special education services ; and that for [B.K.], the educational needs, services, accommodations etc. set forth in her proposed IEP constitute her Section 504 plan. The s concluded: [Plaintiffs'] revocation of consent, therefore, also revoked consent for those Section 504 services and accommodations. THE LAWSUIT The parents filed a lawsuit On February 23, Plaintiffs argue that Defendant discriminated against B.K. by refusing to provide her with educational accommodations under Section 504 and Title II of the ADA once Plaintiffs had revoked consent for special education and related services under the IDEA. Copyright 2015: Walsh, Anderson, Gallegos, Green and Treviño, P.C. 4

5 WHAT THE COURT HAD TO SAY ABOUT SECTION 504 Although the statutory language is framed as a negative prohibition on discrimination, the regulations clarify that a school district has an affirmative duty to identify, locate, and evaluate all children with disabilities in order to ensure that they receive a FAPE. 34 C.F.R WHAT THE COURT HAD TO SAY ABOUT SECTION 504 While the substantive content of Section 504 as applied to a child's education is similar to that of the IDEA, Section 504 has a wider scope. The definition of individual with a disability under Section 504 of the Rehabilitation Act is broader than the definition of a child with [a] disabilit[y] under the IDEA, and thus the group of students eligible for IDEA protection is a subset of the group eligible for protection under Section 504. WHAT IS FAPE FOR A 504 STUDENT? Relying on a 9 th Circuit case, the court observed that although both statutes require the state to provide students with a FAPE, [U]nlike FAPE under the IDEA, FAPE under [Section] 504 is defined to require a comparison between the manner in which the needs of disabled and non-disabled children are met, and focuses on the 'design' of a child's educational program. Copyright 2015: Walsh, Anderson, Gallegos, Green and Treviño, P.C. 5

6 WHAT ABOUT LETTER TO MCKETHAN, 25 IDELR 295 (OCR 1996)? Essentially, there are two groups of students who are qualified students with a disability under Section 504. The first group includes students who qualify for regular or special education and related services under Section 504 and additionally are eligible for services under the IDEA. The second group would include students who are qualified for purposes of Section 504 but do not have a disability recognized by the IDEA. For the first group of students (qualified for services under Section 504 as well as under the IDEA), the implementation of an IEP developed under the IDEA is how the Section 504 requirements... are met WHAT ABOUT LETTER TO MCKETHAN, 25 IDELR 295 (OCR 1996)? Therefore... by rejecting the services developed under the IDEA, the parent would essentially be rejecting what would be offered under Section 504. The parent could not compel the district to develop an IEP under Section 504 as that effectively happened when the school followed the IDEA requirements. WHAT DID THE KIMBLE COURT SAY ABOUT LETTER TO MCKETHAN? Letter to McKethan has no direct applicability to this case, as Plaintiffs do not seek to compel the district to develop an IEP under Section 504, but rather request a Section 504 plan. Copyright 2015: Walsh, Anderson, Gallegos, Green and Treviño, P.C. 6

7 OUTCOME Plaintiff s Motion for Summary Judgment is denied. School District wins. REASONING Because Defendant convened a Section 504 meeting and its committee proposed a 504 plan, once Plaintiffs refused to accept it, Plaintiffs cannot hold Defendant liable for failing to provide accommodations that they rejected as part of the 504 plan. CONTINUING OBLIGATION Nevertheless, just as Defendant was required to convene a Section 504 meeting and develop a 504 plan after Plaintiffs revoked consent for IDEA services, Defendant retains a continuing obligation under Section 504 and the ADA to protect B.K. from discrimination while she remains a qualifying student with a disability... Copyright 2015: Walsh, Anderson, Gallegos, Green and Treviño, P.C. 7

8 CONTINUING OBLIGATION and therefore [the district] must continue to offer any accommodations or services required to ensure that B.K. is provided an opportunity for a FAPE under Section 504. Despite IDEA revocation, the broader scope of Section 504 permits Defendant to offer any other educational modifications or accommodations not encompassed by the IDEA's definitions of those services in order to meet its obligation to provide a FAPE. CONTINUING OBLIGATION Similarly, neither Section 504 nor the ADA permit a parent to request particular accommodations without regard to whether those accommodations constitute a FAPE; rather, the Section 504 process requires a school district to design a plan whose overall effect meets Defendant's FAPE obligations under those statutes. IMPLICATIONS Hold a 504 Meeting Consider 504 Eligibility Design a plan that confers FAPE under Section 504 (which may or may not be the same as what was in the rejected IEP). School district not liable for services parents reject under 504. Copyright 2015: Walsh, Anderson, Gallegos, Green and Treviño, P.C. 8

9 OUTSTANDING QUESTIONS Do we have to continue to reevaluate (review/revise the 504 Plan) under Section 504 prior to any change of placement? Do we have to conduct a MDR prior to a disciplinary change of placement? How do we handle the MDR if the behavior is the result of the failure to provide the services specified in the 504 Plan? The information in this handout was created by Walsh, Anderson, Gallegos, Green and Treviño, P.C. It is intended to be used for general information only and is not to be considered specific legal advice. If specific legal advice is sought, consult an attorney. Copyright 2015: Walsh, Anderson, Gallegos, Green and Treviño, P.C. Copyright 2015: Walsh, Anderson, Gallegos, Green and Treviño, P.C. 9

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